Copyright 1996 TPR Publishing Company, Inc. Small Corporation Update April, 1996 SECTION: ASK THE EXPERTS: ANSWERS TO YOUR BUSINESS QUESTIONS; Vol. 7, No. 4; Pg. 11 LENGTH: 1018 words HEADLINE: How to Get Legal Protection For Creative Works Done by Or for Your Corporation BODY: In today's high-tech age, images and designs can be developed in minutes and nearly everyone, it seems, is into desktop publishing. But while the wonders of technology let people do things they never could before -- and for such a bargain price -- it also allows them to do things they shouldn't. "Borrowing"a Look Say you want to make up a brochure for your business. You may know little about design or publishing, but you've invested in a good computer, desktop publishing software and a scanner. You figure you'll write up a few things and make them look pretty. You see a drawing in a magazine you decide will look great in your advertising circular or newsletter, so you scan it and revise it a bit. Presto, art-director quality without paying a fancy art director! Trouble is, that work is technically stolen property. U.S. copyright law, enacted in 1790, helps define what you can "borrow" and what you can't, Copyright secures the exclusive right of original work to its creators from its moment of inception. Under the law, you can't copy a copyrighted work, a portion of it, or create a similar duplicate. The law covers logos, photographs and graphics -- and literary, musical, dramatic, choreographic and architectural works, as well as motion pictures and other audiovisual and sound recordings. Some things aren't copyrightable. Fonts and typefaces, for instance, and geometric shapes, colors and patterns. Copyright is automatic when the work is created and fixed in a copy or recorded for the first time. The term "fixed in a copy" means it can be read or visually perceived directly or with a machine or device (to view film or videotape, for example). Copyright protects the particular way something has been tangibly expressed, but not the idea, system or factual information itself. Titles, names, short phrases and slogans also can't be copyrighted but can be made into trademarks. Some things are also part of the public domain -- which is why you may see a reproduction of Rodin's "Thinker" advertising toilet seats. In the U.S., works produced before 1978 may be protected for up to 75 years. Works created after that date are protected for the creator's lifetime plus 50 years. Works made for hire (see below) are protected for 75 years from publication or 100 years from the date of creation, whichever comes first. Once the copyright expires, the work enters the public domain and is open for any use. Thus, the array of Van Gogh greeting cards in your neighborhood stationery store is perfectly legitimate. The copyright law also provides that certain rights of a work granted by the creator may be terminated 35 to 40 years after the grant is made or after publication, depending on circumstances. This doesn't apply to works done for hire. Works for Hire Works prepared for your company by your employees are considered "works for hire." So is work that you specifically commission someone to create for your company -- if you have a written agreement to that effect between your corporation and the independent contractor. If a work is made for hire, your corporation, not the creator, owns the copyright. (In filling out a copyright application, you'd enter the company name as author and check off the box marked "work-made-for-hire.") Say your employee, Wendy Wordsmith, writes your advertising copy. What she writes as your employee would belong to your company. You could reprint it whenever you want without getting her permission, and she couldn't sell the work to anyone else. But, if Wendy were a freelance writer, you'd need a written agreement that it's work for hire: Otherwise you're buying the right to one-time use only. Consider Fair Use In our original example you revised that nice drawing you chose for your brochure. You didn't copy it. Where's the line between bending an original image to suit your needs and stealing it? Say you've altered the original work so that it's no longer identifiable. Or you've used only a small section of it. One clean way out is to get permission from the creator. Or use only old images with expired copyrights. Just bear in mind the fair- use doctrine, which sets out four factors in determining whether you're within the limits: * Purpose of use. If you're copying the piece for educational or nonprofit use, you can get away with more than for commercial use. If you're making up a brochure for philanthropic or instructional purposes, you might be OK. * Nature of the work. You must preserve its character. * Usage amount. How much you use is the key element here. The less, the safer. * Economic impact. If you've deprived the creator of income, you've gone too far. You could be hearing from his or her lawyer. Even Congress acknowledges some copying is inevitable. But use common sense. Selling a million copies of an easily identifiable artwork is a bad idea. Protecting Your Own Work Sometimes the shoe is on the other foot: You're the creator trying to protect your own work. If you find your designs reproduced in a commercial piece, what can you do? Technically your work needn't be published or registered to secure copyright. But registration provides solid evidence that, as the creator, you have the exclusive right to reproduce the work, prepare derivative works, distribute copies, and perform or display the work publicly. Registration gives you the right to claim statutory damages and attorneys' fees from the violator. Artists who haven't registered their copyright, and whose work has been lifted, often don't bother to prosecute. Even if they win their case, they're entitled only to actual damages and profits. Trying to register it after the fact doesn't help, either. The work must be registered before the infringement. For a free application, call the copyright forms hotline at 202 707-9100. The Copyright Office, which is part of the Library of Congress, is strict about how they want these forms filled out (down to the color ink to use). So follow their instructions step-by-step.